Eureka Gets Squirrely about Handing over Public Records

As a reporter who's worked in Humboldt County for more than a decade, the Eureka Police Department's May 2 clearing of the PalCo Marsh was something to behold. Chief Andrew Mills made sure there were independent observers, local clergy and a swarm of local media on site, all of them with unfettered access to roam the encampments and document what they saw. Whether that contributed to the remarkable combination of patience and respect officers showed the few dozen remaining homeless campers that day is unclear. But the message sent by Mills' decision to put EPD's actions under a microscope was unmistakable: He had nothing to hide and was accountable to the public.

So it was especially disappointing when, later that evening, the Journal received a letter from Eureka City Attorney Cyndy Day-Wilson denying a request for public documents that could help explain what led to the May 2 evictions. Our disappointment would only deepen in the weeks that followed.

You see, generally we at the Journal don't talk much about our document requests made under the California Public Records Act. We just submit them and then write about the information we get back. That's kind of how it's supposed to work.

But a May 10 press release from the city of Eureka turned that upside down, calling us out for threatening litigation and throwing out a scurrilous accusation that the Journal is somehow in bed with the American Civil Liberties Union and plaintiffs in a lawsuit against the city. The press release is strange, off base and, candidly, just bad governance, especially when one considers its context.

Described by another media outlet as "kind of bizarre," the release begins by offering a brief update on the federal lawsuit brought by 11 plaintiffs who allege the city violated their constitutional rights when evicting them from the PalCo Marsh. A federal judge has ordered the city to provide emergency shelter for the 11, and the city apparently wanted the public to know (through the press release) that six of the plaintiffs are currently staying in the converted shipping container project near Old Town and that the other five's whereabouts are unknown as they haven't taken the city up on its offer of shelter.

The release then notes the city had received an average of 31 "transient related calls" for police service per day and issued 18 illegal camping citations since the marsh was cleared on May 2. Apparently, the city wanted to make residents and the media aware that the clearing of the city's single largest homeless encampment had the effect of dispersing homeless campers throughout the city.

But things take an abrupt turn from there. The release states that the city has received "several" public records requests seeking documents and communications "regarding the broad catch-phrase 'homeless' or 'houseless' from the ACLU and the media." The city then notes its "concern" that these "entities" may be in cahoots with the PalCo Marsh plaintiffs, and is requesting city documents with the aim of slipping them over to the plaintiffs to aid their federal lawsuit. Then, in one final curve, the press release states the following:

"The City has received one threat of litigation from the North Coast Journal. Thaddeus [sic] Greenson of the North Coast Journal has requested City Council and upper management communications since Feb. 1, 2015 from a broad category of records related to "homeless." This request includes records related to the pending lawsuit and the city's decision-making process with regard to the May 2 move-out. The City has and continues to spend a significant amount of time and resources to respond to these PRAs. The city is taking steps to respond to this threat of litigation and will vigorously defend any lawsuit that is filed."

Well, seems like we've got some explaining to do, huh? Let's start with the accusation that we may be somehow conspiring with the PalCo Marsh plaintiffs to aid their case, which is 100 percent false and baseless. We have not spoken to any of the plaintiffs in the case about their lawsuit or about our records requests. Our end game in requesting documents from the city is a pretty straightforward one for a newspaper: We intend to read them and then, maybe, write about them.

But let's back up. The California Public Records Act was signed into law back in 1968 by Gov. Ronald Reagan. The main thrust of the act was laid out in its preamble: "Access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." The act requires state and local governments to make their documents and records available to members of the public upon request, save for some categories of records the Legislature felt wouldn't be in the public's best interest to disclose, things like documents related to police investigations, legal advice and the personal information of government employees. (After all, who would want to work for the government if it meant everyone had access to your social security number?)

Under the act, public agencies have 10 days to respond to any request for documents, though they can extend that period by another 14 days in "unusual circumstances." The agency must describe what records were found that were responsive to the request, and explain its reasons if it is choosing not to turn any of them over. While the act is a crucial tool for newsrooms throughout the state, it's also one available to anyone, which is its central tenet. It enables anyone with questions to file a request (nifty templates are available online). And the act is used widely and frequently. We regularly submit requests with local governments, as do journalism students, news agencies and curious citizens throughout the county and the state.

Since 1968, dealing with records requests has simply been an inherent part of being a public agency.

Now, back to our requests. The city didn't accurately represent them in the press release. First of all, they were submitted not by yours truly but by staff writer Linda Stansberry back on April 7. But that's a pretty trivial error. It gets better.

The first request asked for all written correspondences between city department heads, the city attorney and the city manager from Feb. 1, 2015 through April 7, 2016 about "the Devil's Playground, the Palco Marsh and homeless encampments." The second sought all written correspondences to and from members of the Eureka City Council and the mayor from Jan. 1, 2016 through April 7, 2016 regarding "homelessness within city limits."

Why are we seeking these documents? It's a fair question with a simple answer: We want to see what city department heads were saying to each other about the PalCo Marsh encampments from the time a personal injury lawsuit rendered those camps a massive liability for the city in February of 2015 through the city's setting the May 2 eviction date. Additionally, we wanted a glimpse at what council members were saying to and hearing from their constituents as the issue bubbled to a head. If that's nefarious, well, then, color us nefarious.

On April 8, the day after we asked the city for the documents, City Attorney Cyndy Day-Wilson told us the department head request would "require an extensive search and review of city records" and advised she was invoking the provision of the records act to extend the reply deadline out to 24 days. (On April 19, we received a letter advising the same extension would apply to the second request, as well). Fair enough.

On the 24th day, at 4:56 p.m. on May 2, four minutes prior to the city's legal response deadline, Day-Wilson fired off lettersrefusing to turn over a single email or note. "The city has reviewed your records request; the records requested are nondisclosable," Day-Wilson wrote, adding that she was invoking a pair of exemptions that protect documents related to pending litigation and attorney-client communications.

This struck us as a bit far-fetched; that in a broad stroke Day-Wilson could say a combined 17 months of emails and correspondences, including some between constituents and council members, were all classified as attorney-client communications or pertained to pending litigation. So on May 6, I sent off a (polite, I think) email to Day-Wilson and City Manager Greg Sparks asking the city to reconsider, pointing out our belief that only documents specifically prepared for use in litigation are exempt from disclosure under the law and that there is no attorney-client privilege that protects emails between elected officials and members of the public.

We concluded: "For these reasons we ask that you reconsider your blanket rejection of our two records requests. If I do not hear back from you by 5 p.m. on May 9, we will seek a judicial remedy."

So there's our threat of litigation. And wouldn't you know, at 5:06 p.m. on May 9 we received a long and somewhat cryptic letter from Day-Wilson explaining that the city disagrees with our interpretation of the exemptions of the CPRA and our interpretation of the city's response. "The city is well within its rights to not disclose the requested documents," she wrote, adding that because of unspecified similarities between our records requests and one filed by the American Civil Liberties Union back in February, "the City is suspicious of the motives that prompted Ms. Stansberry's request." (You can conduct your own review of the requests in the online version of this story to determine if you, too, should be suspicious of our motives.)

But Day-Wilson then quickly changed course to say "the city has reconsidered your request and has begun reviewing all of the correspondences that you requested. So far, the city has determined that it will disclose 72 pages."

"Has begun?" At this point, you might be asking yourself, "Didn't the city already review those documents? Didn't it determine them all to be 'nondisclosable,' as Day-Wilson phrased it? But now she's saying that her office has just 'begun reviewing' them and has already determined 72 pages are disclosable?" Yes. Yes. And, yes.

But it gets better. On May 11, we sent an email to Day-Wilson's legal assistant, Danielle Vickman (Day-Wilson has asked that we no longer contact her directly about this matter), to say that we'd like to get copies of those 72 pages. Day-Wilson wrote back to say that since the May 9 letter, the city "has located a significant amount of disclosable documents" and asked that the Journal make a $150 deposit to pay the 10-cents-per-page copying fees for all the records that are now deemed responsive to our request.

To recap, on May 2 everything we asked for was deemed "nondisclosable." Nine days later, there were so many records the city didn't want to begin copying them for us until we pre-paid for 1,500 of them. That about brings you up to speed. Thirty-five days after our initial request, we began to get our hands on some documents. Meanwhile, the city continues it's review to determine, on second glance, what others — if any — the law might mandate be released. It's a process that the city estimates will take another three to four weeks. (As of our press deadline, the Journal has received 665 pages of documents.)

To be clear we haven't filed any lawsuit against the city and our only "threat," if the city wants to call it that, was stating that we disagreed with Day-Wilson's stance and, if necessary, would ask a judge to make sure the city complied with state law (there would be no monetary award in any such lawsuit). And, for the record, we aren't interested in wasting city employees' time or gumming up government with a bunch of worthless requests. We do, however, feel our requests are reasonable, given the public interest in the issue.

Honestly, this whole process has been frustrating. We hoped to put the May 2 evictions into a sharper focus, hoped to offer some insight into the city's year-long dilemma of what to do with the people in the PalCo Marsh. And we hoped to better understand how Eureka's elected leaders navigated the months surrounding the ultimate decision to move forward with clearing the marsh. We're confident we'll still be able to do some or all of that, but it looks like it's going to take longer than expected. We'll keep you updated, seeing as the city thinks folks are suddenly interested in the sausage making of journalism.

In the meantime, it seems appropriate to conclude with a passage from the California Public Records Act itself:

"The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist they may retain control over the instruments they have created."

Editor's note: An original version of this editorial first appeared on the Journal's website on May 12. In the interest of transparency, we've uploaded PDFs of all our referenced correspondences with the city to accompany this online version of this story and they can be accessed by clicking the included hyperlinks. Because, you know, we've got nothing to hide.